This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On January 15, 1994, a contested case hearing (CCH) was held. The issues raised, agreed upon and presented to the hearing officer for resolution were:
First, did [claimant’s] (date of injury) injury cause disability after 5 August 1992?
. . . whether [claimant’s] incapacity and need for medical treatment after 5 August 1992 was solely caused by a prior September 1990 injury.
Did [claimant] reach maximum medical improvement, and, if so, on what date?
The hearing officer determined that claimant’s (date of injury), injury did cause his disability after August 5, 1992, that claimant’s prior 1990 injury was not the sole cause of his present “incapacity” and need for medical treatment and that claimant has not reached maximum medical improvement (MMI) pursuant to a designated doctor’s finding.
Appellant, carrier herein, takes issue with certain of the hearing officer’s factual determinations alleging they are not supported by the evidence and requests that we reverse the hearing officer’s decision and that carrier be reimbursed from the Subsequent Injury Fund for all benefits paid. Respondent, claimant herein, did not file a response.
DECISION
The decision of the hearing officer is affirmed in part on the issues of sole cause and MMI and is reversed and we render a new decision regarding the disability issue.
Claimant testified that he was employed as a truck driver, driving a dump truck for (employer), in March 1992 (all dates are 1992 unless otherwise noted). Claimant testified he hauled asphalt and gravel and earned “somewhere between seven-fifty and eight dollars an hour.”[1] Claimant testified on March 14th he was picking up a load of “clay dirt” and was “leaning out the window” when a “lump of dirt” was dropped into the bed of the truck claimant was driving. Claimant testified that “[t]he truck came down, the seat went up, and it just sent a shock through my neck.” Claimant, in essence, claims that when the load was dropped it caused his neck to hit the truck’s door jam. Claimant subsequently sought treatment with (Dr. D) for the first time on March 16th. Claimant also was referred to and/or received treatment from (Dr. S) and (Dr. P), as discussed below. Dr. D, on a Report of Medical Evaluation (TWCC-69), certified MMI was reached on April 20th with zero percent impairment rating (IR). Dr. S, on a TWCC-69, dated August 25, 1993, certified claimant had reached MMI on April 6th with a zero percent IR. Dr. P, on a TWCC-69 and report dated December 1, 1993, certified claimant reached MMI on August 5th, with zero percent IR. Claimant testified that he was told by Dr. P that he was being released to light duty. It is undisputed claimant called the employer on August 6th, seeking work. However, it is not clear and is disputed whether claimant asked for light work or not. In any event, employer did not offer claimant any work. Claimant testified that “around November” (presumably 1992) he worked for (D Company) packing “. . . lifting, little boxes which weighed up to 20 or 30 pounds, for about a month” earning $6.00 an hour working “pretty much” a 40-hour week. Claimant testified he left D Company both because he “couldn’t handle the job” and because he had “failed a physical examination” and “was released.” Claimant stated he did not know why he failed the physical examination after he had been employed “four to six weeks.” Claimant stated he had not worked since that time.
Carrier, in cross-examination and through medical records, elicited that claimant had a workers’ compensation knee injury in June 1982, April 1987 and February 1988, with the 1988 injury being settled for $6,500.00. Claimant also had a workers’ compensation injury to his “neck, back and shoulders” in September 1990 while working for “essentially the same company as this employer.” Claimant testified he was off work with that injury until March 1991 and that he had entered into a compromise settlement in the amount of $10,000.00 for that injury in August 1991. In connection with the September 1990 injury claimant had an MRI for his neck and spine performed in January 1991.
Claimant had apparently disputed the first impairment rating and, by letter of February 4, 1993, (Dr. E) was appointed as a Texas Workers’ Compensation Commission (Commission) selected designated doctor to determine:
1.Disability,
2.Return to work, including any restrictions which may be indicated,
3.Maximum Medical Improvement, and
4.Impairment Rating
Dr. E, by report dated March 10, 1993, clearly indicated he was aware of claimant’s September 1990 injury, found claimant had not reached MMI stating:
In terms of future treatment, the patient may benefit from a cervical laminectomy as discussed by [Dr. P], therefore, he has not yet reached maximum medical improvement. I do not believe that he can return to work at this time in view of his persisting pain unless there is some type of a very light duty job available. Using the AMA Guidelines, the patient has a 17% impairment to the body as a whole calculated based upon the two level disc herniation at C4-5 and C-67, the left C7 nerve root compromise documented by myelogram and the decreased cervical range of motion with decreased rotation to the left as documented on my examination.
Dr. E characterizes the (date of injury), injury as a “second injury.”
The medical evidence consists of a March 30th report from Dr. S, which notes “subjective complaints of neck pain without any objective abnormalities . . . cervical strain.” A radiology report dated April 15, 1992, has an impression:
Spondylitic changes with degenerative disc disease. Mainly central bulging and osteophyte formation is noted at the levels between C3 and C6 and left sided osteophyte formation at the C6-7 level accompanied by a disc bulge.
However, a preliminary consultation report of a cervical myelogram dated May 18th notes: “Probable left sided disk herniation at C6-7. CT will follow.” A “CT Post Myelogram Cerv” dated May 19th notes “[q]uestion of small disc herniation C4-5 greater on the left” and “[m]ild spondylosis with question of small central disc herniation C6-7.”
Dr. D, in an Initial Medical Report (TWCC-61) dated April 21st, notes MMI on “04-21-92” with return to full-time work on the same date. In an undated TWCC-69, Dr. D certified MMI on April 20, 1992, with zero percent IR.
In a May 4th report Dr. P reviewed claimant’s history, physical examination and gave the following diagnosis:
DIAGNOSIS: Cervical radiculopathy on the left; C5, C6, and C7 roots are involved. I will need to review his radiographic studies and, at that time, make a determination on recommendations. If the MRI is negative, then the patient should undergo a cervical myelogram and post myelogram CT scan.
A TWCC-61, dated May 22, also diagnoses “[c]ervical radiculopathy on the left, C5, C6 and C7 roots are involved.” A TWCC-64 report dated May 22nd, indicated CT scan showed a disc herniation at C4-5 and C6-7. In a report dated July 1st, Dr. P references the cervical myelogram and post-myelogram CT scan done in May 1992, quoted above, and notes claimant “has evidence of a left C7 radiculopathy . . . [and] a small disc rupture at C6-7 on the left.” Dr. P notes he has reviewed claimant’s January 1991 MRI and the more recent MRI and states “[t]he recent MRI scan is essentially unchanged from his study back in January 1991.” The disc at C6-7 was present in both MRIs “and does not appear to be any larger.” Dr. P noted normal EMG and NCV studies and suggested a “repeat EMG and NCV.” In a follow-up report by Dr. P dated August 5th, Dr. P compares recent diagnostic studies and medical notes with those of studies and notes for the 1990 injury and states “there does not appear to be any difference. . . .” Dr. P concluded that claimant:
. . . has excellent strength in his upper extremities in spite of his complaints of pain. He has a full range of motion in his cervical spine.
There is no objective evidence on physical exam that could keep him from returning to work to full activity.
In a December 1, 1993, letter to carrier, Dr. P stated:
I saw [claimant] regarding an injury in [sic] which he allegedly sustained in 1992. When I first saw him, he had evidence of a cervical radiculopathy. However, I initially did not have his studies or earlier findings as documented by Dr. B. Once I gathered all of this information together, it was clear to me that [claimant’s] physical findings and impairment all dated back to his 1990 injury and that, in my opinion, he has no impairment relative to his (date of injury) injury.
The hearing officer, in pertinent (disputed) part, determined:
FINDINGS OF FACT
8.[Claimant] had treatment for his (date of injury neck injury through August 1992. His doctor released him to light duty work in August 1992.
9.During November 1992 [claimant] worked moving light packaging where he earned less than he earned at [employer] before his (date of injury) injury.
11.On 8 March 1993, [Dr. E] examined [claimant]. At the time of his examination [Dr. E] had appropriate medical records before him, and was not aligned with either the carrier or the claimant. [Dr. E] noted that MRI, myelogram, and CAT Scan taken after (date of injury injury had abnormal findings showing a C4-5, and C6-7 disc herniation and nerve entrapment. [Dr.E] believed [claimant] might be a candidate for surgery, he had not reached maximum medical improvement from his (date of injury) injury, and did not believe [claimant] could work because of persistent pain.
12.[Claimant’s] (date of injury) injury caused him to be unable to obtain and retain employment at wages he earned before (date of injury) beginning 6 August 1992 and continuing to present.
13.[Claimant’s] (date of injury) accident was not the sole cause of [claimant’s] incapacities and need for medical treatment after 5 August 1992.
14.[Dr. E’s] determination that [claimant] had not reached maximum medical improvement from (date of injury) injury by 8 May 1993 is not against great weight of other medical evidence.
CONCLUSIONS OF LAW
5.Because [Dr. E]: (i) is a Commission designated doctor who reported that [claimant] had not reached maximum medical improvement on 8 March 1993 from (date of injury) injury; and (ii) [Dr. E’s] determination is not contrary to the great weight of other medical evidence, under the Act, [Dr. E’s] determination that [claimant] had not reached maximum medical improvement is presumed to be correct, and therefore, [claimant] had not reached maximum medical improvement from a (date of injury) injury by 8 March 1993.
6.Because [claimant] has shown by a preponderance of the evidence that his (date of injury) injury caused him to be unable to obtain and retain employment at wages he earned before (date of injury) from 5 August 1992 to present, he has shown that he had disability for such period and is eligible for temporary income benefits, for which [carrier] is liable.
Carrier contends that the hearing officer’s Finding of Fact No. 8, quoted above, is not supported by the evidence because the only evidence suggesting a light duty release was claimant’s testimony which is contradicted by Dr. P’s August 5th report. We have frequently held that the issue of disability may be based solely on the testimony of the injured employee. Texas Workers’ Compensation Commission Appeal No. 931117, decided January 21, 1994; Texas Workers’ Compensation Commission Appeal No. 92167, decided June 11, 1992; Texas Workers’ Compensation Commission Appeal No. 94052, decided February 28, 1994; citing Gee v. Liberty Mutual Fire Insurance Co., 765 S.W.2d 394 (Tex. 1989). The hearing officer is the sole judge of the weight and credibility to be given to the evidence, Section 410.165(a), and, as such, the hearing officer may believe all, part or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.), Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). Texas Workers’ Compensation Commission Appeal No. 94179, decided March 23, 1994. Whether claimant was released to light duty or full duty and what he may have said or not said to the employer in the August 6th telephone conversation is strictly a factual determination within the province of the hearing officer to decide.
Carrier’s contention that Finding of Fact No. 9 is erroneous does have merit. Finding of Fact No. 9, quoted above, stated that claimant’s earnings in November 1992 while working for D Company were “less than he earned with [employer]” before his injury. As noted earlier in this opinion, claimant’s undisputed AWW with employer was $227.07. Claimant’s testimony, vague though it may have been, was that he was earning $6.00 an hour for approximately 40 hours or an AWW of $240.00 while working for D Company. Carrier further offers Texas Employment Commission (TEC) records into evidence showing claimant earned $1,746.00 during the fourth quarter of 1992. Whether one uses four or six weeks that claimant admitted he worked in November/December 1992, the AWW is in excess of the $227.07 pre-injury wage with employer. Consequently, we reverse the hearing officer’s decision that claimant had disability from August 5, 1992, to the present (date of the CCH) and render a new decision that claimant is not entitled to temporary income benefits (TIBS) for the period of time that he worked for D Company in November/December 1992 and that carrier is entitled to reimbursement from the Subsequent Injury Fund for the period that claimant was not entitled to TIBS.
Carrier’s complaints of error in Findings of Fact Nos. 11, 13 and 14 are combined in that they all deal with factual determinations of whether the designated doctor considered all of the evidence, was misled by claimant’s representations that he could not work, or whether the presumptive weight of his opinion was outweighed by the opinions of Drs. D, S and P. Carrier argues that Drs. S and P have opined, after comparing MRIs and diagnostic studies of claimant’s September 1990 injury and his present injury, that claimant’s 1990 injury is the sole cause of claimant’s current problems. Carrier speculates that had the designated doctor had other, different or additional information available “in all likelihood” Dr. E would have arrived at some other opinion more favorable to the carrier. We note that Dr. E’s report is dated March 10, 1993, almost 10 months before the CCH. Had carrier wished to do so, Dr. E could have been deposed or additional information could have been provided Dr. E (through Commission channels) and inquiry made whether that would change Dr. E’s opinion. Carrier failed to do so and now requests the Appeals Panel to reverse a hearing officer who has given presumptive weight to a designated doctor’s report in accordance with the 1989 Act (Sections 408.122(b) and 408.125(e)), based on conjecture and speculation of what the designated doctor might have found if some of the information had been differently presented. This we decline to do. The Appeals Panel has also frequently noted the important and unique position occupied by the designated doctor in the resolution of disputes over MMI and IRs. See, e.g., Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. And we have stated that a “great weight” determination amounts to more than a preponderance of the medical evidence (Appeal No. 92412, supra), and is clearly a higher standard than that of a preponderance of the evidence. Texas Workers’ Compensation Commission Appeal No. 93432, decided July 16, 1993. Similarly, we have observed that no other doctor’s report, including a report of a treating doctor, is accorded the special presumptive status of the designated doctor. Texas Workers’ Compensation Commission Appeal No. 92366, decided September 10, 1992. We affirm the hearing officer’s determination that the great weight of other medical evidence is not contrary to that of the designated doctor.
Carrier also contends that claimant’s September 1990 injury is the sole cause of his present problems, pointing to the comparisons of claimant’s MRI made by Drs. P and S, who concluded claimant did not suffer additional permanent injury to his neck. One might reasonably reach that conclusion, however, the hearing officer specifically found that the September 1990 accident was not the sole cause of claimant’s “incapacities,” presumably based on claimant’s testimony that he had completely recovered from the September 1990 accident, had worked for employer some months (almost a year) before the present injury and the findings in the designated doctor’s report. While there is evidence to support the carrier’s position, it is the hearing officer, not the Appeals Panel, that is the fact finder and we will normally not pass on the credibility of a witness or substitute our judgment for that of the fact finder, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied).
Having reviewed the record, we do not find the hearing officer’s determinations on all the issues, except those relating to disability from August 5, 1992, to the present, to be so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). On the issue of disability, we determine, based upon the claimant’s own testimony, the undisputed determination of an AWW of $227.07 at the BRC and the records of the TEC, that claimant did not have disability (being the inability to obtain and retain employment at wages equivalent to the pre-injury wage, Section 401.011(16)) for such periods of time as claimant worked for D Company in November and/or December 1992, and that carrier is entitled to reimbursement for TIBS paid during that period from the Subsequent Injury Fund. Consequently, so much of the hearing officer’s decision and order that deals with disability for the period of August 5, 1992, to the date of the CCH, is reversed and we render a new decision that claimant had disability from August 6, 1992, to the date of the CCH, except for the period of time claimant worked for D Company in November/December 1992. Otherwise, the hearing officer’s decision and order are affirmed.
The decision and order of the hearing officer are affirmed on all issues except disability and we render a new decision that claimant is entitled to disability beginning August 6, 1992, to the CCH, excluding such times as claimant was employed by D Company in November/December 1992.
Thomas A. Knapp – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Susan M. Kelley – Appeals Judge
- Although average weekly wage (AWW) is not an issue in this case, it has relevance in determining disability as defined by the 1989 Act. We note that at the benefit review conference (BRC) an interlocutory order, dated May 20, 1993, records claimant’s AWW as $227.07 and this has not been disputed, notwithstanding the claimant’s testimony that he earned somewhere between $7.50 and $8.00 an hour. ↑